Opinion
No. 27290
May 1, 2008
Appeal from the Circuit Court of Webster County Honorable John W. Sims, Circuit Judge.
Craig Allan Johnston of Columbia, MO, Appellant's Attorney.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen. of Jefferson City, MO, Respondent's Attorney.
Jamie Avery (Defendant) was charged by amended information with committing the class A felony of murder in the second degree and the unclassified felony of armed criminal action (ACA) for killing Bruce Paris (Paris) with a handgun. See § 565.021; § 571.015. A jury found Defendant guilty of committing the lesser-included offense of voluntary manslaughter and ACA. See § 565.023; § 565.025.2(2)(a). The two convictions resulted in concurrent terms of imprisonment for 15 and 35 years, respectively.
All references to statutes are to RSMo (2000).
On appeal, Defendant presents two points for decision. First, she contends that the trial court erred in giving Instruction No. 6, a voluntary intoxication instruction based upon MAI-CR 3d 310.50, because the instruction lacked evidentiary support. Second, she contends that the trial court erred in excluding evidence that Paris was a registered sex offender. Because Defendant's first point has merit, we are constrained to reverse the judgment and remand the case for a new trial.
I. Factual Background
In 1997, Regina Buckner (Buckner) was married and lived in Pittsburg, Missouri. Paris and his girlfriend, Michelle Morlan (Morlan), became Buckner's next-door neighbors. Paris and Buckner became involved in a sexual relationship that ended when it was discovered by Morlan.
In September 2000, Buckner and Paris renewed their sexual relationship. At that time, Paris was living in Pleasant Hope, Missouri. He and Morlan still were involved in a relationship, but she lived in Hartville. Buckner and her husband were living in Nemo, Missouri, next door to a restaurant/bar called the Hickory House. John Hamilton (Hamilton) lived in a log cabin across the highway from Buckner. Defendant was Hamilton's girlfriend and resided with him. Defendant and Buckner were acquainted and sometimes spent time together.
In October 2000, Hamilton left town on business. He dropped Defendant off in Pleasant Hope to spend time with Buckner and Paris. This was the first time that Defendant and Paris had met, and they were mutually flirtatious.
Thereafter, Paris discussed returning to his hometown of Chicago, Illinois, with Buckner. When Defendant learned about the trip, she wangled an invitation from Paris to come along. The plan was for all three to spend the night at Paris' home and leave the next morning. Defendant packed all of her belongings at Hamilton's house and placed them in Paris' car. Defendant, Buckner and Paris then went to his house in Pleasant Hope. That evening, Buckner discovered that Paris and Defendant were having sex in a back room. Buckner gathered up her possessions and left.
The next day, Buckner told Morlan what had happened. Morlan called Paris, who asked her to help him get Defendant out of the house. Paris had changed his mind and did not intend to take Defendant to Chicago. Morlan returned to Pleasant Hope that afternoon and told Defendant to gather up her things because she was going to be taken back to Nemo. Defendant had been drinking and appeared to be intoxicated. On the trip home, Paris had to stop at a rock quarry because Defendant became sick. Morlan held Defendant's hair so she could vomit. When the group arrived at Hamilton's cabin, Defendant was unable to stand on her own and could not find her keys. Paris and Morlan left Defendant lying on the porch surrounded by her belongings.
Defendant reconciled with Hamilton and continued living with him. Paris traveled with Morlan to North Carolina for about ten days. Paris then went to Chicago by himself for several weeks. On December 5, 2000, Buckner received a message from Paris. He was back in Missouri and wanted to meet with her and Defendant the next day.
On December 6, Hamilton was in California on business. Defendant went to the Hickory House sometime after 2:00 p.m. to play darts and drink beer. Buckner found Defendant there. She had drunk four beers before Buckner arrived. The two spent the next 60 to 90 minutes drinking and playing darts at the bar. During that time, Defendant consumed four to six beers. Buckner eventually told Defendant about Paris' message. Defendant became upset and angry upon learning that Paris was around and said she had Hamilton's permission to shoot Paris if he got near her.
Buckner and Defendant left Hickory House at 4:20 p.m. and went to Hamilton's house, where Buckner continued to drink. She stayed there about an hour. She was supposed to pick Paris up in Halfway around 6:00 p.m. When Buckner got ready to leave, she asked if Defendant wanted to come along. She agreed and offered to drive Hamilton's Blazer to Halfway. Buckner drove her car to a nearby bowling alley so she could leave the vehicle there and ride along with Defendant.
Buckner and Defendant met Paris in Halfway as planned. Defendant drove the trio around for a while, and they decided to stop at a gas station to purchase some schnapps and beer. Buckner drank some schnapps, and Paris had one or two beers. Defendant opened a beer and consumed some of it. Buckner and Paris also smoked some marijuana.
Eventually, the group returned to Hamilton's house. Buckner said she wanted to be taken to her car and then meet back at the Hickory House. Defendant drove Buckner to her car. Buckner went to the home of Becky Gibbs, who was a friend of Hamilton, and told her that Defendant was in Hamilton's house with Paris. Gibbs immediately called Hamilton to let him know. He, in turn, called Defendant to confront her about Paris being in Hamilton's home against his instructions. Defendant told Hamilton that she and Buckner had only gone to see Paris to tell him to leave Defendant and Hamilton alone and that Paris was no longer in the house.
Sometime after Hamilton spoke to Defendant, she shot Paris once with a .38 revolver. The bullet went through Paris' right elbow and entered his neck, causing massive bleeding that resulted in his death. At 9:09 p.m., Defendant called the Hickory County Sheriff's Department to report that she had shot an intruder. In less than 10 minutes, several police officers had arrived at Hamilton's home. Defendant was extremely upset, hysterical and crying.
In a videotaped statement to police, Defendant said the following: (1) she told Paris to leave the house, but he refused; (2) he complied only after Defendant grabbed a gun and threatened to call the police; (3) a short while later, Defendant went out on the porch with her dog; (4) Defendant took the gun with her because she was afraid of the dark and also feared Paris would return; (5) she was holding the gun behind her with her finger on the trigger; (6) after hearing a noise and seeing a figure approaching the house, she ran back inside without closing the door; (7) when Paris walked in the front door, she pointed the gun at him; (8) he told her to put the gun down, or he would beat her; (9) Paris grabbed at the gun, and she shot him; and (10) she did not mean to kill him.
Because the dispositive issue in this case involves an instructional error, this brief overview of the facts is sufficient. Additional facts necessary to the disposition of the case are included below as we address Defendant's points on appeal.
II. Discussion and Decision
In Defendant's first point, she contends the trial court erred by giving a voluntary intoxication instruction that was not supported by the evidence. The following facts are relevant to this issue.
At trial, the State's theory was that Defendant killed Paris in order to protect her relationship with Hamilton. Defendant claimed she acted in lawful self-defense and defense of premises. Defendant did not admit any wrongdoing or try to defend the charges against her by claiming she was intoxicated. It was the State that introduced all of the evidence relating to Defendant's consumption of alcohol on December 6, 2000. During the State's case-in-chief, a number of witnesses were called who had observed Defendant on that date. These included: (1) Buckner; (2) all four officers who saw Defendant at Hamilton's house immediately after Paris was shot; and (3) the bartender and a waitress from the Hickory House. None of these persons opined that Defendant appeared to be intoxicated, nor did they provide any testimony from which it could reasonably be inferred that Defendant's faculties were impaired from her consumption of alcohol. For example, Defendant played darts at the Hickory House and later drove the Blazer to Halfway to pick up Paris without any apparent difficulties. Neither was there any evidence that Defendant had slurred speech, coordination problems or other recognized indicia of intoxication.
In contrast, there was testimony from Morlan that Defendant had been intoxicated once in October 2006. On that occasion, Defendant became ill, vomited, was unable to stand and could not find her keys. No witness testified to any similar behavior by Defendant on December 6, 2000.
At the instruction conference, the State tendered Instruction No. 6. This instruction, which was based on MAI-CR 3d 310.50, stated:
The state must prove every element of the crime beyond a reasonable doubt. However, in determining the defendant's guilt or innocence, you are instructed that an intoxicated condition from alcohol will not relieve a person of responsibility for her conduct.
Defense counsel objected to the instruction because there was evidence that Defendant had consumed alcohol, but there was no evidence that she had become intoxicated. The prosecutor did not respond to counsel's statement, and the trial court overruled the objection. Thereafter, the jury was instructed on lawful self-defense, lawful defense of premises, second-degree murder, voluntary manslaughter, involuntary manslaughter and ACA.
During closing argument, the State never argued that Defendant was voluntarily intoxicated when Paris was killed. Instead, the prosecutor simply noted that Defendant had consumed a number of beers before and after Buckner's arrival. The prosecutor contended that this put Defendant "in the same frame of mind" as in October 2006 and rekindled her anger against Paris because she had been drinking on both occasions.
The jury found Defendant guilty of voluntary manslaughter and ACA. In order to find Defendant guilty on the former offense, the jurors had to reject Defendant's assertion that she acted in lawful self-defense or lawful defense of premises.
As noted above, Defendant claims the trial court erred in submitting Instruction No. 6 due to lack of evidentiary support. It is axiomatic that a jury instruction must be supported by substantial evidence and the reasonable inferences to be drawn therefrom. Coday v. State , 179 S.W.3d 343, 354 (Mo.App. 2005). Reversal is only required, however, "for instructional error which misleads the jury to the prejudice of the defendant." State v. White , 738 S.W.2d 590, 593 (Mo.App. 1987). Defendant argues that Instruction No. 6 was likely to confuse or mislead the jury into believing that she had admitted some wrongdoing and was attempting to escape liability based on voluntary intoxication.
This Court addressed a very similar situation in State v. Bristow , 190 S.W.3d 479 (Mo.App. 2006). Bristow was charged with first-degree assault and ACA. He relied on a theory of self-defense. Id. at 481. The State presented evidence that Bristow had consumed eight beers over a nine to nine and one-half hour period. Id. Instruction No. 13, which was a voluntary intoxication instruction based upon MAI-CR 3d 310.50, was given over Bristow's objection. Id. at 482. The jury convicted Bristow.
Instruction No. 13 is identical to Instruction No. 6 in the case at bar.
On appeal, Bristow argued that Instruction No. 13 misled or confused the jury to his prejudice. Id. This Court was required to decide "what constitutes sufficient evidence of a voluntarily intoxicated condition to trigger the giving of MAI-CR 3d 310.50." Id. at 484. Based on the facts presented in that case, proof of alcohol consumption alone was not sufficient:
We refuse to accept the State's argument that any evidence of alcohol consumption is sufficient to show an "intoxicated condition." We are persuaded that [Bristow] is correct when he asserts that there must be evidence showing some level of impairment resulting from an intoxicated condition before MAI-CR 3d 310.50 is proper.
Id. (italics in original). After a thorough analysis of relevant statutes, cases and other authorities, this Court held that the phrase "intoxicated condition," as used in MAI-CR 3d 310.50, means:
at a minimum, some evidence from which it could be reasonably inferred that an accused's alcohol consumption had impaired his condition of thought or action; or had caused the loss of the normal control of his faculties; or that he exhibited some abnormal mental or physical condition that was the result of indulging in intoxicating liquors or drugs or that tended to deprive him of the clearness of intellect and control of himself that he would otherwise possess.
Id. at 486. Because there was no such evidence in the record, it was error to give Instruction No. 13 in Bristow's case. Furthermore, this Court determined the error was prejudicial because the jury was misled into believing that: (1) Bristow was attempting to escape liability based on intoxication; and (2) he was, in fact, intoxicated. These two erroneous implications directly contradicted Bristow's claim of self-defense. Id. at 487.
The State argues that Instruction No. 6 was properly given in the case at bar because there was adequate evidence of intoxication. To support this argument, the State points to evidence that: (1) Defendant had consumed eight to eleven beers over a seven-hour period; (2) she "ranted and raved" at Hickory House when Buckner told Defendant that Paris wanted to see her; and (3) Defendant was extremely emotional, hysterical and upset when police arrived. We find this argument unpersuasive for the following reasons.
In a statement to the Highway Patrol, Defendant said she drank eight beers during the course of the evening. The higher number came from Buckner's testimony.
First, one of the issues in Bristow was whether the consumption of eight beers over a nine to nine and one-half hour period, without any evidence showing some level of impairment from such consumption, permitted an inference of intoxication. Id. at 484. This Court held that no such inference was warranted. Id. In the case at bar, Defendant consumed between eight and eleven beers over a seven-hour period. Considering the quantity of alcohol consumed, the time span of the consumption, the fact that Defendant never claimed to have been intoxicated and the absence of any discernible alcohol-related impairment, we conclude that no inference of intoxication from alcohol consumption alone was warranted in the case at bar.
Second, our careful review of the record does not demonstrate that the two incidents mentioned by the State show any level of alcohol-related impairment. At trial, the State's theory was that Paris' failure to take Defendant to Chicago had enraged her, and his return in December 2006 rekindled that rage to a murderous level. Buckner's testimony tended to support this theory:
Q.Now, you talked a little bit, I guess not about [Paris], but then eventually you did mention it. Tell us about how that came about, what did you say?
A.I worked up the nerve and I told [Defendant]. I said well, I talked to [Paris] and he said he has some things to tell you. Do you want to go and meet him this afternoon. He said that was fine, if you don't that's fine too.
Q.When she heard this what was her reaction?
A.She immediately went livid, I don't want to see that m______. I don't want him anywhere near me. He almost caused my life to go to hell, you know it's like. . . .
Q.Did she say anything else?
A.She had sat there and ranted and raved for a little bit, and she said you just let him come back to Hickory County, you let him come back. I've got guns waiting.
We find nothing in Buckner's testimony to reasonably support the inference that Defendant's remarks resulted from alcohol impairment, rather than anger at Paris' unexpected return. Quite clearly, it was the latter inference that the State argued to the jury in closing argument. Likewise, it is not reasonable to infer that Defendant's behavior around the police was attributable to alcohol impairment, rather than some other cause. Based upon testimony from a jailhouse snitch, the prosecutor argued that Defendant's emotional outburst had been feigned to keep police from learning about her successful plan to lure Paris into her house and kill him. Defendant's various statements to police, on the other hand, suggested that her emotional condition resulted from the realization that she had unintentionally killed Paris when she fired the gun.
For an inference to be reasonable, it must rise above the level of conjecture and speculation. See Leary v. U.S. , 395 U.S. 6, 36 (1969). At a minimum, the inferred fact must be more likely than not to flow from the proven fact in order to be considered rational, reasonable and logical. Id.
In short, we find the case at bar to be indistinguishable from Bristow . A thorough review of the record reveals no evidence from which the jury could have reasonably inferred that Defendant was in an intoxicated condition. Therefore, we hold that the giving of Instruction No. 6 was error. We further hold that the error was prejudicial because this erroneous instruction could have led the jury to reject Defendant's claim that she acted in lawful self-defense and/or defense of premises.
The State asks that we reexamine our holding in Bristow because that opinion is at odds with State v. Mouse , 989 S.W.2d 185 (Mo.App. 1999), and State v. Owsley , 959 S.W.2d 789 (Mo. banc 1997). We find no conflict and decline the invitation to overrule Bristow .
Mouse was overruled on other grounds by State v. Pond , 131 S.W.3d 792, 794 (Mo. banc 2004).
The State points to a footnote in Mouse stating that no evidence of impairment is necessary to support the submission of a voluntary intoxication instruction. Mouse , 989 S.W.2d at 189 n. 4. We note, however, that there was ample evidence of Mouse's impairment due to alcohol consumption when the crime was committed:
Defendant told the officer who arrested him he purchased beer on two occasions the day Mr. Wilkerson was assaulted, first at a convenience store he identified as "Judy's" and later at "T's Corner." Defendant testified that he threw three beers out of his vehicle after the assault was committed because he did not want to receive "another license charge, DUI or something." He said after he arrived at Mr. Wilkerson's house and went inside, he "started trippin' out." He claimed he heard a "ringing noise"; that he saw "purple dots . . . kind of like a fuzzy t.v. station." He did not remember seeing blood on his clothing or himself. The explanation he gave was that he had "gotten high and stuff."
Id. at 189. Therefore, the comment cited by the State was unnecessary to the decision and constituted mere dictum lacking any precedential value. See State v. Carlock , 242 S.W.3d 461, 464 (Mo.App. 2007). "A judicial opinion should be read in light of the facts pertinent to that case, it being improper to give permanent and controlling effect to statements outside the scope of the real inquiry of the case." State ex rel. Casey's General Stores, Inc. v. City of West Plains , 9 S.W.3d 712, 720 (Mo.App. 1999).
The State also argues that, in State v. Owsley , 959 S.W.2d 789 (Mo. banc 1997), our Supreme Court did not require any evidence of impairment to uphold the giving of a voluntary intoxication instruction. From our review of that opinion, however, there was no real dispute that Owsley was voluntarily intoxicated when his crimes were committed. In fact, one of his points on appeal was that he should have been permitted to introduce evidence of his voluntary intoxication in order to negate the required mental element of deliberation on the murder charge. Id. at 795. Furthermore, the Supreme Court held that a MAI-CR 3d 310.50 instruction must be supported by evidence that "a person was voluntarily intoxicated." Id. The evidence was sufficient to prove that Owsley was voluntarily intoxicated because he had consumed one and one-half pints of gin before murdering the victim. That would be the equivalent of consuming 24 one-ounce shots of hard liquor. Such prodigious alcohol consumption — which was far greater than in Bristow or the case at bar — would warrant a reasonable inference of voluntary intoxication without the necessity of further evidence of impairment. Consequently, Owsley does not support the State's argument. Point I is granted.
In Defendant's second point, she contends that the trial court erred in excluding evidence that Paris was registered as a sex offender in Dallas County, Missouri. The only relief requested in connection with this alleged evidentiary error is a reversal and remand for a new trial, which is already necessary due to our disposition of Defendant's first point. It is not advisable to address this evidentiary issue because the record on retrial may not be the same as the one presently before us in terms of the precise evidence offered, objections made and rulings issued. See State v. Morgenroth , 227 S.W.3d 517, 524 (Mo.App. 2007). For example, one of Defendant's arguments on appeal is that the State opened the door to the admission of this proffered evidence through Buckner's questioning. The State asks us not to consider the argument because it was not presented below. On remand, this deficiency could be corrected. If any of the State's evidence on retrial did "open the door" as Defendant contends, she would have an opportunity to make that argument to the court and potentially obtain a different ruling on the admissibility of Paris' status as a registered sex offender. Any discussion of the issue on the present record would be advisory only. Bristow , 190 S.W.3d at 482 n. 3.
The convictions and sentences are reversed, and the cause is remanded for a new trial.
BARNEY, J. — Concurs
BURRELL, J. — Concurs